Appellate Division

Admissions by omission CPLR § 3018(a)

CPLR
§ 3018 Responsive pleadings
(a) Denials

Miller v Bah, 2010 NY Slip Op 04753 (App. Div., 2nd, 2010)

After first considering the evidence presented by the plaintiff, the
Supreme Court next considered certain admissions made by the defendant.
In this regard, the complaint contained certain allegations concerning
the defendant's ownership and operation of a particular vehicle at the
time of the accident, which the defendant failed to address in his
answer. The defendant therefore was deemed to have admitted the truth of
those allegations (see CPLR 3018[a]; Maplewood, Inc. v Wood, 21
AD3d 933), and "admissions . . . in pleadings are always in evidence
for all the purposes of the trial of [an] action" (Braun v Ahmed, 127
AD2d 418, 422 [internal quotation marks omitted]). The Supreme Court
found that even when the evidence was coupled with the defendant's
admissions, the plaintiff failed to "link" the defendant to the
offending vehicle. Thus, the Supreme Court granted the defendant's
motion pursuant to CPLR 4401 for judgment as a matter of law.

Appearance by Service CPLR R. 320

CPLR R. 320 Defendant's appearance

Goonan v New York City Tr. Auth., 2010 NY Slip Op 04742 (App. Div., 2nd, 2010)

A plaintiff may seek leave to enter a default judgment when a defendant,
among other things, has failed to appear within the time required (see
CPLR 3215[a]; Okeke v Ewool, 66 AD3d 978, 979). A defendant
appears, inter alia, by serving an answer upon the plaintiff (see
CPLR 320[a]; Cerrito v Galioto, 216 AD2d 265, 266; cf. Ahmad v
Aniolowiski, 28 AD3d 692, 693). Contrary to the plaintiff's
contention, there is no statutory or other requirement that an answer,
timely served upon a plaintiff, must also be filed with the clerk of the
relevant court in order for a defendant to appear in the action. Here,
the defendant appeared in the action by timely serving its answer upon
the plaintiff (see CPLR 320[a]; Siegel, NY Prac § 110, at 199
[4th ed]) and, therefore, there was no default.

CPLR R. 3212(f) Hope and Speculation not Enough

CPLR R. 3212
Motion for summary judgment
(f)
Facts unavailable to opposing party

Essex Ins. Co. v Michael Cunningham Carpentry, 2010 NY Slip Op 04732 (App. Div., 2nd, 2010)

Andreassen's contention that the motion for summary judgment was
premature is without merit. It failed to offer any evidentiary basis to
suggest that discovery may lead to relevant evidence. The hope and
speculation that evidence sufficient to defeat the motion might be
uncovered during discovery was an insufficient basis to deny the motion (see Peerless Ins. Co. v Micro Fibertek, Inc., 67
AD3d 978, 979; Tedesco v Tedesco, 64 AD3d 583, 584; Conte v Frelen Assoc., LLC, 51 AD3d 620,
621).

There are plenty of cases on this issue, but I like the brevity of this one.

Just after I read this one, I found another.

Family-Friendly Media, Inc. v Recorder Tel. Network, 2010 NY Slip Op 04735 (App. Div., 2nd, 2010)

CPLR 3212(f) permits a party opposing summary judgment to obtain further
discovery when it appears that facts supporting the position of the
opposing party exist but cannot be stated (see Aurora Loan Servs.,
LLC v LaMattina & Assoc., Inc., 59 AD3d 578; Juseinoski v New
York Hosp. Med. Ctr. of Queens, 29 AD3d 636, 637). Under the
circumstances of this case, the Supreme Court properly denied that
branch of the plaintiff's motion which was for summary judgment on the
complaint as premature, without prejudice to renew (see Matter of
Fasciglione,AD3d, 2010 NY Slip Op 03926 [2d Dept 2010]; Baron v
Incorporated Vil. of Freeport, 143 AD2d [*2]792,
792-793).

And one from the First Department.

Montalvo v Chiaramonte, 2010 NY Slip Op 04707 (App. Div., 1st, 2010)

Neither plaintiffs nor Chiaramonte submitted any affidavits or evidence
to show that "facts essential to justify opposition [to the Tarts'
motion] may exist but cannot then be stated" (CPLR 3212[f]). Nor did
they ever challenge the motion court's finding that the "Tart vehicle
never came into contact with the decedent."

Waiver and Amendment CPLR R. 3211(e); CPLR R. 3025(b)

CPLR R. 3025 Amended and supplemental
pleadings
(b) Amendments and
supplemental pleadings by leave

CPLR R. 3211 Motion to dismiss
(e)
Number,
time and waiver of objections; motion to plead over

Complete Mgt., Inc. v Rubenstein, 2010 NY Slip Op 04726 (App. Div., 2nd, 2010)

However, the Supreme Court improvidently exercised its discretion in
denying that branch of the defendants' motion which was for leave to
amend their answer to assert the affirmative defense of lack of capacity
to sue. Although the defendants waived this defense by failing to raise
it in their answer or in a motion to dismiss made prior to answering (see
CPLR 3211[a][3];[e]; FBB Asset Mgrs. v Freund, 2 AD3d 573, 574; Harte
v Richmond County Sav. Bank, 224 AD2d 585, 586), " defenses waived
under CPLR 3211(e) can nevertheless be interposed in an answer amended
by leave of court pursuant to CPLR 3025(b) so long as the amendment does
not cause the other party prejudice or surprise resulting directly from
the delay'" (Nunez v Mousouras, 21 AD3d 355, 356, quoting Endicott
Johnson Corp. v Konik Indus., 249 AD2d 744, 744). Under the
circumstances of this case, the granting of leave to amend would not
have resulted in prejudice or surprise to the plaintiff, and the
proposed amendment was neither palpably insufficient nor totally devoid
of merit (see Bajanov v Grossman, 36 AD3d 572, 573; Nunez
v Mousouras, 21 AD3d at 356).

Compare with

Sackett v Konigsberg, 2010 NY Slip Op 04765 (App. Div., 2nd, 2010)

Contrary to the plaintiff's contention, the Supreme Court properly
granted the defendants' motion to strike the amended complaint based
upon her failure to comply with CPLR 3025. The record indicates that the
plaintiff served her amended complaint well beyond the period within
which an amended pleading may be served as of right (see CPLR
3025[a]) without first obtaining leave of the court or the stipulation
of the parties (see Nikolic v Federation Empl. & Guidance Serv.,
Inc., 18 AD3d 522, 524).

The appeal from the order dated March 17, 2008, must be dismissed
as abandoned, as the plaintiff does not seek in her brief reversal or
modification of any portion of the order (see Sirma v Beach, 59
AD3d 611, 614; Bibas v Bibas, 58 AD3d 586, 587).

Late Supplemental BP

CPLR R. 3043 Bill of particulars in personal injury actions

(b) Supplemental bill of particulars without leave. A party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities without leave of court at any time, but not less than thirty days prior to trial. Provided however that no new cause of action may be alleged or new injury claimed and that the other party shall upon seven days notice, be entitled to newly exercise any and all rights of discovery but only with respect to such continuing special damages and disabilities.

(c) Discretion of court. Nothing contained in the foregoing shall be deemed to limit the court in denying in a proper case, any one or more of the foregoing particulars, or in a proper case, in granting other, further or different particulars.

Spiegel v Gingrich, 2010 NY Slip Op 04645 (App. Div., 1st, 2010)

The motion court, although it properly concluded that RSD was not a
"new" injury, but a sequela of plaintiff's original injury, granted the
motion to strike the supplemental bill of particulars because it was
served 12 days before trial was scheduled to commence. This alleged
"delay" resulted in the adjournment of the trial without date.

The CPLR contemplates that supplemental bills of particulars may
be served 30 days before trial without leave of court (see CPLR
3043[b]). However, the CPLR grants a motion court the discretion to
determine whether to allow a "late" supplemental bill, or an amended
bill of particulars, provided no prejudice to the defendant results.
Indeed, CPLR 3043[c], entitled "discretion of court," provides,
"[N]othing contained in the foregoing shall be deemed to limit the court
in denying in a proper case, any one or more of the foregoing
particulars, or in a proper case, in granting other, further or
different particulars."

Defendant herein cannot
seriously contend that he was prejudiced. He argued, before the motion
court, that evidence of RSD was in the record as early as June 2007,
citing Dr. Doolan's assessment. Further, the adjournment of the trial
without a date furnished ample opportunity for defendant to conduct
discovery concerning plaintiff's allegation that she suffers from RSD.
Given the manifest lack of prejudice to defendant, together with the
adjournment of the trial without a date, it was an improvident exercise
of discretion for the motion court to grant the motion to strike
plaintiff's supplemental bill of particulars, based solely on the fact
that the supplemental bill was served 12 days before the scheduled trial
date.

The pretrial order limiting the scope of plaintiff's expert's
expected trial testimony is not appealable before a judgment after trial
is rendered (Santos v Nicolas, 65 AD3d 941 [2009]). Thus,
we dismiss the appeal from this order.

All concur except Tom, J.P. and DeGrasse, J. who dissent
in part in a memorandum by DeGrasse, J. as follows:

DeGRASSE,
J. (dissenting in part)

I respectfully dissent. Plaintiff was injured when she slipped and
fell on defendant's boat. Her supplemental amended bill, served 14 days
before trial, contravened the 30-day deadline set forth in CPLR 3043(b).
She did not seek leave to serve a late supplemental bill, and offered
no reasonable excuse for her delay (see Torres v Educational Alliance,
300 AD2d 469, 470-471 [2002]).

The pretrial order limiting the scope of plaintiff's expert's
expected trial testimony is not appealable before a judgment after trial
is rendered (Santos v Nicolas, 65 AD3d 941 [2009]).
Accordingly, I would affirm the order entered September 28, 2009, which
granted defendant's motion to strike plaintiff's supplemental amended
bill of particulars, and dismiss the appeal from the order entered on
the same date which granted defendant's motion to preclude plaintiff's
biomedical engineer from testifying at trial as to proximate cause.

CPLR § 202 Plaintiff is a resident of its state of incorporation

CPLR § 202 Cause of action accruing without
the state

Verizon Directories Corp. v Continuum Health Partners, Inc., 2010 NY Slip Op 04640 (App. Div., 1st, 2010)

For purposes of CPLR 202, plaintiff is a "resident" of, and its cause of
action accrued in, Delaware, the state of its incorporation (see
Global Fin. Corp. v Triarc Corp., 93 NY2d 525, 529-530 [1999]; American
Lumbermens Mut. Cas. Co. of Ill. v Cochrane, 129 NYS2d 489 [1954], affd
284 App Div 884 [1954], affd 309 NY 1017 [1956]). We reject
plaintiff's contention that, for purposes of the statute, it is a
"resident" of New York, or that its cause of action accrued in this
State, by virtue of its authorization to do business and asserted
extensive presence here (see Global Fin. Corp., 92 NY2d at
528-29). Hence, New York's six-year statute of limitations does not
apply (see CPLR 202),
and the action is barred by Delaware's one-year statute (10 Del Code
Ann, tit 10, § 8111).

No Subsitute for SJ: CPLR R. 3212(a)

CPLR R. 3212(a)

Brewi-Bijoux v City of New York, 2010 NY Slip Op 04535 (App. Div., 2nd, 2010)

Initially, we note that while the defendants characterized their motion as one for in limine relief to dismiss the complaint for failure to establish a prima facie case, the record reveals that the motion actually was one for summary judgment. "[A] motion in limine is an inappropriate substitute for a motion for summary judgment" (Rondout Elec. v Dover Union Free School Dist., 304 AD2d 808, 810-811; see Rivera v City of New York, 306 AD2d 456, 457). Moreover, the Supreme Court improvidently exercised its discretion in considering this late motion since the defendants failed to offer any excuse for their failure to timely move for summary judgment (see CPLR 3212[a]; Brill v City of New York, 2 NY3d 648; Nobile v Town of Hempstead, 17 AD3d 647; Clermont v Hillsdale Indus., 6 AD3d 376, 377). Such failure warrants denial of the motion without consideration of the merits thereof (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725; Brill v City of New York, 306 AD2d 456). Accordingly, we reinstate the complaint.

[Edit 6/4] found another one

West Broadway Funding Assoc. v Friedman, 2010 NY Slip Op 04781 (App. Div., 2nd, 2010)

Post Note of Issue Discovery and the “Wherefore” clause.

Don't get too caught up in the NOI discovery issue. Read all the way down where the court discusses the "Wherefore" clause. This is why you put in "such other, further, or different
relief" etc etc etc.

22 NYCRR 202.21 Note
of issue and certificate of readiness

Tirado v Miller, 2010 NY Slip Op 04364 (App. Term, 2nd, 2010)

A certificate of readiness certifies that all discovery is completed,
waived, or not required and that the action is ready for trial (see 22
NYCRR 202.21[b]). The effect of a statement of readiness is to
ordinarily foreclose further discovery (see Blondell v Malone, 91
AD2d 1201; Niagara Falls Urban Renewal Agency v Pomeroy Real Estate
Corp., 74 AD2d 734; Bookazine Co. v J & A [*3]Bindery, 61 AD2d 919).

Discovery that is nevertheless sought after the filing of a note
of issue and certificate of readiness is governed by a different set of
procedural principles than discovery that is sought prior to the filing
of a note of issue. Pre-note discovery includes disclosure of "all
matter material and necessary in the prosecution or defense of an
action" (see CPLR 3101[a]), which is to be liberally construed (see
Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406; Byck v
Byck, 294 AD2d 456, 457; U.S. Ice Cream Corp. v Carvel Corp., 190
AD2d 788). Post-note discovery, on the other hand, may only be sought
under two procedural circumstances set forth in 22 NYCRR 202.21. As
discussed by this Court in an opinion by Justice Feuerstein in Audiovox
Corp. v Benyamini (265 AD2d 135, 138), one method of obtaining
post-note discovery is to vacate the note of issue within 20 days of its
service pursuant to 22 NYCRR 202.21(e), by merely showing that
discovery is incomplete and the matter is not ready for trial. The
second method, beyond that 20 days, requires that the movant, pursuant
to 22 NYCRR 202.21(d), meet a more stringent standard and demonstrate
"unusual or unanticipated circumstances and substantial prejudice"
absent the additional discovery (Audiovox Corp. v Benyamini, 265
AD2d at 138; see Schroeder v IESI NY Corp., 24 AD3d 180, 181; Aviles
v 938 SCY Ltd., 283 AD2d 935, 936).

Here, it is not contested that the note of issue and certificate
of readiness were filed in February 2008. The note of issue was never
stricken as a result of any motion filed within the 20-day deadline set
forth in 22 NYCRR 202.21(a). Accordingly, any additional discovery
sought by the plaintiff from Travelers must meet the requirements of 22
NYCRR 202.21(d) that the discovery be needed because of "unusual or
unanticipated circumstances" and that its absence causes "substantial
prejudice."

We recognize that the trial court did not grant any unrequested
relief, but rather, granted the specific relief sought by the defendants
and Travelers in their motion of quashing the plaintiff's subpoena and,
in effect, granting a protective order. On appeal, the plaintiff takes
issue, inter alia, with the Supreme Court's having determined the motion
on a ground unrelated to the privilege and relevance issues briefed by
the parties. However, in rendering decisions on motions, trial courts
are not necessarily limited by the specific arguments raised by parties
in their submissions. CPLR 2214(a) provides that a notice of motion
shall specify the time and place of the hearing on the motion, the
supporting papers upon which it is based, the relief demanded, and the
grounds therefor. A court typically lacks the jurisdiction to grant
relief that is not requested in the moving papers (see McGuire v
McGuire, 29 AD3d 963, 965; NYCTL 1998-1 Trust v Prol Props.
Corp., 18 AD3d 525, 527). The notice of motion in this instance
sought an order quashing the subpoena and granting a protective order on
the limited grounds of privilege and irrelevance. However, the notice
of motion also contained a general prayer, for "such other and further
relief as [the] [c]ourt may deem just and proper."

General relief clauses, for "such other, further, or different
relief," are often included in notices of motion by practitioners to
cover the possibility that the appropriate relief is not what the movant
has specifically asked for, "but is close enough to enable the court to
grant it" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY,
Book 7B, CPLR C2214:5). The presence of a general relief clause enables
the court to grant relief that is not too dramatically unlike that which
is actually sought, as long as the relief is supported by proof in the
papers and the court is satisfied that no party is prejudiced (see
Frankel v Stavsky, 40 AD3d 918; HCE Assoc. v 3000 Watermill Lane
Realty Corp., 173 AD2d 774; Lanaris v Mutual Benefit Life Ins.
Co., 9 AD2d 1015).

The bold is mine.

Choose your reasonable excuse wisely, you might get stuck with it. CPLR R. 5015

CPLR R. 5015

Tadco Constr. Corp. v Allstate Ins. Co., 2010 NY Slip Op 04362 (App. Div., 2nd, 2010)

The plaintiff moved for leave to enter a default judgment upon the
defendant's failure to answer or appear and the defendant thereafter
cross-moved to vacate its default on the ground that it had not been
properly served with the Summons with Notice. Although the Supreme Court
determined, after a hearing, that the defendant had been properly
served pursuant to CPLR 308(2), it vacated the defendant's default and
granted the defendant leave to serve an answer.

On appeal, the plaintiff contends that the Supreme Court erred in
vacating the defendant's default. In addition, the defendant seeks to
challenge by way of cross-appeal the Supreme Court's determination that
it was properly served with process. Although the defendant's
cross-appeal must be dismissed on the ground that it is not aggrieved by
the order vacating its default, the contentions raised by the defendant
can be considered as alternative grounds for affirmance (see
Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539,
545-546; Matter of Allstate Ins. Co. v Leach, 15 AD3d 649).
[*2]

In seeking to vacate its
default, the defendant was required to demonstrate a reasonable excuse
for the default and a potentially meritorious defense (see Sime v
Ludhar, 37 AD3d 817; Professional Bookkeeper, Inc. v L & L
N.Y. Food Corp., 18 AD3d 851; Fekete v Camp Skwere, 16 AD3d
544). Contrary to the defendant's contentions, the evidence adduced at
the hearing fully supports the Supreme Court's determination that it was
properly served with process pursuant to CPLR 308(2) (see Fashion
Page v Zurich Ins. Co., 50 NY2d 265, 271-272; Aguilera v Pistilli
Constr. & Dev. Corp., 63 AD3d 765; Eastman Kodak Co. v
Miller & Miller Consulting Actuaries, 195 AD2d 591).

Since the defendant offered no other excuse for its default, the
Supreme Court improvidently exercised its discretion in vacating the
default (see Pezolano v Incorporated City of Glen Cove, 71 AD3d
970; Sime v Ludhar, 37 AD3d 817; Professional Bookkeeper, Inc.
v L & L N.Y. Food Corp., 18 AD3d at 851). Accordingly, the
Supreme Court should have denied the defendant's cross motion and
granted the plaintiff's motion for leave to enter a default judgment.

This case inspired me to add a new tag, "It's kind of a big deal."

Civil Contempt

Delijani v Delijani, 2010 NY Slip Op 04332 (App. Div., 2nd, 2010)

" To sustain a finding of civil contempt based upon a violation of a
court order, it is necessary to establish that a lawful court order
clearly expressing an unequivocal mandate was in effect and the
person alleged to have violated the order had actual knowledge of its
terms'" (Ottomanelli v Ottomanelli, 17 AD3d 647, 648
[emphasis added], quoting Kawar v Kawar, 231 AD2d 681, 682
[internal quotation marks omitted]; see Judiciary Law § 753; McCain
v Dinkins, 84 NY2d 216, 227; Miller v Miller, 61 AD3d 651, 652; Massimi v Massimi, 56 AD3d 624). Moreover,
"due process requires that, in contempt proceedings, the contemnor be
afforded an opportunity to be heard at a meaningful time and in a
meaningful manner'" (Matter of Mosso v Mosso, 6 AD3d 827, 829,
quoting 16D CJS, Constitutional Law § 1425; see Chamberlain v Chamberlain, 24 AD3d 589,
595; Matter of Janczuk v Janczuk, 305 AD2d 680, 681).

In its September 2, 2009, order, the Supreme Court granted that
branch of the plaintiff's motion which was to hold the defendant in
contempt of court "insofar as defendant is found in contempt for his
violation of the June 18, 2009 Order of this Court." However, as noted,
there is no indication that any court order was entered or even issued
on June 18, 2009. Nor can the promise made by defense counsel during
colloquy in open court on that date, regarding restoration of the
electric power, qualify as the " lawful order of the court, clearly
expressing an unequivocal mandate,'" which is necessary before a finding
of contempt can be made (Massimi v Massimi, 56 AD3d at 624;
quoting Matter of McCormick v Axelrod, 59 NY2d 574, 583; see Ottomanelli v Ottomanelli 17 AD3d 647; Kawar
v Kawar, 231 AD2d at 682).

We further note that in the order dated September 2, 2009, the
Supreme Court specifically concluded that the plaintiff had failed to
demonstrate her compliance with the December 5, 2008, order and, thus,
that the "defendant cannot be held in contempt for his non-compliance"
with said order (emphasis added). Accordingly, inasmuch as the
defendant was not found to have willfully violated any "order" of the
court, the finding of contempt against him was erroneous (see Massimi
v Massimi, 56 AD3d at 625; Rienzi v Rienzi, 23 AD3d 447; Ottomanelli v Ottomanelli, 17 AD3d 647).

On a sort of related note, I ran across a case where the trial court was affirmed after sanctioning a party,

Miller v Cruise Fantasies, Ltd., 2010 NY Slip Op 04970 (App. Div., 2nd, 2010)

"A court may sua sponte impose sanctions against an attorney or a
party to the litigation, or against both, but the attorney or party to
be sanctioned must be afforded a reasonable opportunity to be heard" (Kamen v Diaz-Kamen, 40 AD3d 937, 937; see
22 NYCRR 130-1.1[a], [d]; Matter of Griffin v Panzarin, 305 AD2d
601, 603; Kelleher v Mt. Kisco Med. Group, 264 AD2d 760, 761; Morrison
v Morrison, 246 AD2d 634). Conduct during litigation is frivolous
and subject to sanction and/or the award of costs under 22 NYCRR 130-1.1
"if it is completely without merit in law and cannot be supported by a
reasonable argument for an extension, modification or reversal of
existing law or . . . it is undertaken primarily to delay or prolong the
resolution of the litigation, or to harass or maliciously injure
another" (Astrada v Archer, 71 AD3d 803, 807 [internal
quotation marks omitted]; see Greene v Doral Conference Ctr. Assoc., 18
AD3d 429, 431; Tyree Bros. Envtl. Servs. v Ferguson Propeller,
247 AD2d 376, 377).